AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
Engaging external lawyers or investigators to con - duct preliminary assessments can significantly assist employers in defining an investigation’s scope. See 1.4 Responsibility for further detail.
While they are not usually entitled to full witness state - ments or confidential material, they must be given suf - ficient information to enable a meaningful response. Further Interviews Sometimes, individuals need to be interviewed more than once, particularly where: • clarification or further evidence is required as new evidence emerges; and • apparent inconsistencies arise that can only be assessed once evidence is considered collectively. Repeat interviews, while often necessary, can cause distress and disruption for participants. As a matter of best practice, any additional interviews should be limited to clearly identified issues, and the purpose and scope of those interviews should be transparently explained to the individuals concerned. 3.2 Participation For many reasons, individuals may be reluctant or refuse to participate in an investigation. In the first instance, employers should seek to under - stand the nature of the individual’s concerns and con - sider whether any reasonable measures can be put in place to allow their voluntary participation. For example, fears of potential victimisation or adverse treatment may be addressed by: • reiterating the employer’s obligations regarding confidentiality and victimisation; • reminding all participants of those obligations; and • providing the individual with a dedicated contact point to raise concerns during the course of the investigation. Employees can generally be directed to participate in an investigation where the direction is lawful and reasonable. A refusal to comply with such a direction may itself constitute misconduct, potentially justifying disciplinary action. If the refusal persists, the employer may be informed that, if they choose not to participate, the investiga - tor may proceed on the available evidence and draw
3. Interviews and Fact-Finding 3.1 Interviewees
Who is interviewed will depend on the nature and scope of the allegations, but generally falls into the following categories. Reporter The reporter is usually interviewed early in the inves - tigation in order to: • clarify the nature and particulars of the allegations; • understand the context, background and alleged impact of the conduct; • identify relevant dates, locations and potential wit - nesses; and • obtain any supporting documents or other evi - dence. Witnesses Witnesses can include individuals who: • directly observed the alleged conduct; and • can provide relevant contextual or background information, such as supervisors or managers with knowledge of workplace practices, reporting struc - tures or patterns of behaviour. The number of witness interviews, and the scope of those interviews, should be no more than is relevant and necessary to help prove or disprove a material issue in dispute. Respondent Procedural fairness requires that the respondent be informed of the allegations and any adverse evidence and be given a reasonable opportunity to respond. Therefore, respondents are usually interviewed later in the investigation.
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